Interest of A.J.B.
| Decision Date | 19 June 2003 |
| Docket Number | No. 14-02-00794-CV.,14-02-00794-CV. |
| Parties | IN THE INTEREST OF A.J.B. |
| Court | Texas Court of Appeals |
On Appeal from the 387th District Court Fort Bend County, Texas Trial Court Cause No. 01-CV-118351.
Panel consists of Justices Anderson, Seymore, and Guzman.
Appellant, Leonard Smith, appeals the termination of his parental rights to his son, A.J.B., who was adopted the same day the trial court terminated Smith's parental rights. In five issues, Smith contends (1) no pleadings support the trial court's judgment that he impregnated A.J.B.'s birth mother through sexual assault; (2) insufficient evidence supports the trial court's judgment that he impregnated A.J.B.'s birth mother through sexual assault; (3) insufficient evidence supports the trial court's judgment that termination of his parental rights is in A.J.B.'s best interest; (4) he was deprived of effective assistance of counsel; and (5) he was deprived of trial by jury.1 We affirm.
A.J.B.'s young birth mother arranged a private adoption for him before his birth. Thus, A.J.B.'s adoptive mother, the petitioner in this lawsuit, was present at his birth. His birth mother voluntarily terminated her parental rights, and his adoptive mother is the only parent A.J.B. has known. Originally, the adoptive mother brought suit to terminate the father's parental rights, contending that he failed to register with the paternity registry. Smith was served by publication because he could not be located.
By the time of the termination hearing, Smith had been located in prison, appeared, confirmed his paternity through genetic testing, and registered with the paternity registry. The adoptive mother never amended her petition to allege other grounds for termination, namely that Smith's sexual assault resulted in the birth mother's pregnancy. Smith opposed termination of his parental rights, although he did not wish to remove A.J.B. from his adoptive mother's custody. Nonetheless, the trial court terminated Smith's parental rights on these grounds and also determined that this was in the child's best interest. Smith now appeals the termination of his parental rights.
In his first issue, Smith contends there were no pleadings on which to base a judgment that his parental rights should be terminated for impregnating A.J.B.'s birth mother by sexual assault. A judgment must conform to the pleadings and proof. Latch v. Gratty, Inc., 46 Tex. Sup. Ct. J. 470, 2003 WL 548573, at * 3 (Feb. 27, 2003); TEX. R. CIV. P. 301. Unpleaded claims that were tried by express or implied consent are treated as if they were raised by the pleadings. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); TEX. R. CIV. P. 67; see In re M.A.N.M., 75 S.W.3d 73, 81 (Tex. App.— San Antonio 2002, no pet.) (Stone, J., dissenting) (discussing trial by consent in termination of parental rights). To determine whether an issue was tried by consent, we examine the record as a whole for evidence of a trial on the issue, not merely evidence of the issue. Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex. App.—Houston [1st Dist.] 1993, writ denied).
At trial, counsel for the petitioner argued that Smith's rights should be terminated because of the sexual assault and that such termination was in A.J.B.'s best interest. See TEX. FAM. CODE ANN. § 161.007 (Vernon 2002) (). The trial court admitted the judgment from Smith's conviction for the sexual assault. In his testimony, Smith acknowledged that he pleaded guilty to sexual assault and that he was aware his parental rights could be terminated because the crime produced a child. This is evidence that the issue was tried by consent. See id.
Smith further argues that the inadequate pleadings violated his right to due process and, because this is a termination proceeding, "the usual rules applicable to trial by consent in civil cases should not apply." However, even error affecting constitutional rights may be waived without proper preservation. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001); see, e.g., Dorsey v. State, 84 S.W.3d 8, 10 (Tex. App.—Texarkana 2002, no pet.) (in which defendant waived issue of due process violation). Smith did not object to the lack of pleadings at or before trial. "The party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal." Roark, 813 S.W.2d at 495. Because Smith did not object until his motion for new trial, he waived the issue on appeal. Accordingly, we overrule issue one.
In his second issue, Smith contends the evidence is legally and factually insufficient to show that he committed a sexual assault that resulted in a pregnancy. A parent's parental rights can be involuntarily terminated only by a showing of clear and convincing evidence, not just a preponderance of the evidence. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); Robinson v. Dep't of Protective & Regulatory Servs., 89 S.W.3d 679, 685 (Tex. App.— Houston [1st Dist.] 2002, no pet.). Clear and convincing evidence is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved. TEX. FAM. CODE ANN. § 101.007 (Vernon 2002); In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).
When reviewing legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the finding to determine whether the fact finder could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). To appropriately defer to the fact finder's conclusions, we must assume that the fact finder resolved disputed facts in favor of its finding, if a reasonable fact finder could do so. Id. at 266. We disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible. Id. When reviewing factual sufficiency of the evidence, we determine whether the fact finder could reasonably form a firm belief or conviction based on the evidence about the truth of the State's allegations. Id. We consider whether disputed evidence is such that a reasonable fact finder could not have resolved it in favor of its finding. In re J.I.T.P., 99 S.W.3d 841, 844 (Tex. App.—Houston [14th Dist.] 2003, no pet.). "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re J.F.C., 96 S.W.3d at 266.
In this issue, Smith contends there was insufficient evidence that (1) the criminal judgment for sexual assault was final and (2) the victim of the sexual assault became pregnant with A.J.B. Regarding the first contention, the evidence includes the criminal judgment, which was signed in January 2002. The testimony in trial of this, held five and a half months later, revealed that Smith did not timely appeal the sexual assault, although he wished to file a writ of habeas corpus for ineffective assistance of counsel. See TEX. R. APP. P. 26.2(a) (). Additionally, the criminal judgment reflects that Smith pleaded guilty pursuant to a plea bargain. A criminal defendant's right to appeal from a plea bargain is severely limited. See TEX. R. APP. P. 25.2(2). Finally, Smith's intent to file a writ of habeas corpus did not make the criminal conviction any less final. Thus, legally and factually sufficient evidence shows that the criminal judgment was final.2
Regarding the second contention, the criminal judgment reflects that the sexual assault occurred on May 25, 2000, some nine months before A.J.B.'s birth on February 19, 2001. Although the name of A.J.B.'s birth mother is not shown in the criminal judgment, in an addendum to the judgment, the criminal court noted that the victim was age sixteen. The testimony at trial in this case confirmed that A.J.B.'s birth mother was sixteen at his birth. Further, the trial court took judicial notice, without objection, of genetic testing confirming Smith's paternity and of petitioner's home study, which states that the birth mother was impregnated as a result of a sexual assault. Finally, in his testimony at the termination hearing, Smith acknowledged knowing that when sexual assault "ends up producing a child as it has here," the crime is grounds for termination of parental rights. We hold that this is legally and factually sufficient proof that the sexual assault resulted in A.J.B.'s birth. Accordingly, we overrule issue two.
In his third issue, Smith contends there is legally and factually insufficient evidence that termination of his parental rights was in A.J.B.'s best interest. There is a strong presumption that preserving the parent-child relationship is in the best interest of a child. See TEX. FAM. CODE ANN. §§ 153.131(b), 153.191, & 153.252 (Vernon 2002). The Texas Supreme Court has compiled factors to consider when determining the best interest of a child. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include (1) the child's desires; (2) the child's emotional and physical needs now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking...
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